Australia has just had a double-dissolution election. The election was called after two industrial relations bills twice failed to pass the Senate. This triggered the deadlock provisions in the Constitution.
Section 57 of the Constitution sets out what happens in the event of a disagreement between the House of Representatives and the Senate, when a bill fails to pass the Senate twice.
In this situation, the governor-general (with the prime minister’s advice) can trigger a double-dissolution election, where both the Senate and the House of Representatives are simultaneously dissolved. In a normal election, only half of the Senate is dissolved.
Australia’s founders envisaged there would be disagreements between the houses of parliament. The double-dissolution election procedure was intended to break any deadlocks by giving the people a say when our elected representatives in parliament cannot agree on important policy matters.
Following the election, Prime Minister Malcolm Turnbull has committed to try to pass the bills.
So, what happens next?
Now that we have had the double-dissolution election, the next step is for the government to attempt again to pass the bills through the House of Representatives and Senate.
The government appears to have the numbers to pass the bills in the House of Representatives. If the newly composed Senate refuses to pass the bills, the governor-general, on the prime minister’s advice, may convene a joint sitting of both houses of parliament.
In this joint sitting, the bills will pass only if they are supported by an absolute majority – that is, more than 50% of the total number of members of both houses.
If the bills still fail to pass, then the deadlock provisions in the Constitution are completed. This means that if the government wants to reintroduce the bills again, it can do so, but it will have to go through the whole rigmarole of the constitutional deadlock provisions from scratch.
This means trying to pass the bills through the Senate twice more and then going to a double-dissolution election once again, and then trying to pass the bills through both houses and, if the bills still don’t pass, convening yet another joint sitting.
It is difficult to imagine that the government would want to go down this path.
Has this happened before?
Australia has previously had only six double-dissolution elections.
A joint sitting of both houses has only ever happened once in Australia. In 1974, the Whitlam government convened a joint sitting to pass six bills introducing territorial representation in the Senate, Medicare and the Petroleum and Minerals Authority. These bills were passed at the joint sitting with the required absolute majority of both houses.
Another infamous double dissolution took place following the Whitlam government’s dismissal, after the Senate refused to pass the budget bills to provide funds for the government to operate. This provided a double-dissolution trigger.
Controversially, the governor-general, Sir John Kerr, dismissed Gough Whitlam for being unable to secure money to govern. Kerr appointed the opposition leader, Malcolm Fraser, as caretaker prime minister. Fraser then called a double-dissolution election, which he won by a large majority.
All the other deadlocks were resolved by either the government losing the election, thus rendering the bill moot (in 1914 and 1983), or gaining power in both houses to pass the bill (1951). A government has also chosen once not to proceed with a joint sitting for a double-dissolution bill following an election, in 1987.
What is likely to happen?
With a Senate that looks even more difficult and unwieldy than before the election and fewer government members in the House of Representatives, it is unlikely that the Turnbull government has the numbers to pass the industrial relations bills in a joint sitting.
So Australia is hurtling toward new constitutional territory. This may be the first time that a joint sitting of parliament will be convened only for the bill to ultimately be rejected.
It is possible that Turnbull will go down in constitutional and political history as being the first prime minister to take a double dissolution all the way to the end – and fail.
Authors: Yee-Fui Ng, Lecturer, Graduate School of Business and Law, RMIT University